Before it vanishes into the vapor, mourned by almost no one, let me tell you about the Small Business Regulatory Relief Act.
Promising title, wasn’t it?
It could evaporate this year. It’s named in a long list of things to be repealed in HB 29, the 89-page bill that creates the proposed new Department of Commerce.
The Small Business Regulatory Relief Act was enacted in 2005 (HB 869; you can read it on the New Mexico Legislature’s Web site).
The act established the Small Business Regulatory Advisory Commission, which was to review proposed state regulations and comment on the effect of those regulations on small business.
But the law had no teeth. The requirement for cooperation by state agencies was so wimpy as to be meaningless — in part because there was no consequence for failure by an agency to cooperate. And if the commission identified a problem, there was no requirement for agencies to fix it.
In short, the law was designed to fail.
These flaws were obvious to me immediately, and I wondered why there was no record of attempts to make the bill stronger. Maybe because the sponsors were the House Speaker and the Senate Majority Leader. As a serious proponent of reducing government brutalization of small business, I was hopeful — but not very. Alas, I was right.
After it was enacted, I tried several times to find information about the commission and what, if anything, it was doing. It was attached to the Economic Development Department, but I found no mention of it on the department’s website. More than a year later, I telephoned the department and talked with a staff member assigned to this commission. I learned that commission members had been appointed, and a couple of meetings had taken place. But nothing of substance had been done.
Some time later, I met a commission member. The members, initially committed and enthusiastic, had been forced to spend several meetings trying to figure out how to get the information they needed from state agencies, she said, and never got much past that point.
Frustrated members started missing meetings. Without a quorum the commission couldn’t take official actions. Then members started resigning.
This was predictable from the legislation. State agencies often ignore legislative demands to cooperate with each other, and usually they get away with it. This was no exception.
The law also says, “By July 1, 2010, each agency shall have reviewed all of its rules ... to determine whether the rules ... should be amended or repealed to minimize the economic impact of the rules on small business ...” Go ask any state agency whether that’s been done.
In August, 2010, an “administrative procedures task force,” attempting to go over the usual ground in discussing how to make regulations less onerous to small business, mentioned the commission once in its report.
It says, “Small Business Regulatory Advisory committee lacked budget, authority and, ironically, rulemaking authority.”
So should we let the poor thing be put out of its misery? I think it should be amended, not repealed. Here’s the gist of an amendment that will make it work. (I’ll volunteer technical details on request.)
Part 1: Every state agency shall submit draft rules to the commission, and the commission shall have 30 days to respond.
If the commission responds that the rules need amending, the rules shall have no effect or force of law until an acceptable amendment is done.
Part 2: Every existing rule enacted by every agency of New Mexico government is subject to review by this commission or it will automatically be repealed by a sunset provision in five years.
That’ll fix it.